Mishpatim: Statutory Chesed

Taking the law into one's own hands.

Rabbi Dr. Aryeh Hirsch,

Aryeh Hirsch
Aryeh Hirsch

A few days before the recent elections, I received a phone call from a company in Haifa which was doing a survey. They were very interested in questions focusing on my view of taking the law into one's own hands, especially in
These mishpatim, "laws" (featured in Exodus, chapters 21-23), interrupt the Torah's relating of the story of Sinai.
light of government actions that I might consider as conflicting with Torah law or my conscience (specifically, they referred to the Gush Katif Disengagement-eviction). This week being parshat Mishpatim, I'd like to present some thoughts on the subject.

In the Talmud, Baba Kama (27b), Rabbi Yehudah debates Rabbi Nechemiah:

"Rabbi Yehuda says that a person may not take the law into his own hands, while Rabbi Nechemiah says that one may enforce the law for himself. Where there is an irretrievable loss in waiting for the courts, all agree that one may enforce the law for himself. They disagree only in a case where one would suffer no loss if he does not take action, but waits to take his contestant to court. Rabbi Yehudah says: 'As he suffers no loss, let him go to court.' Rabbi Nechemiah says that since he knows that he is acting according to the law, he need not trouble himself to go to the judge.

"Rabbi Kahana asked of Rabbi Yehuda: 'Ben Bag Bag says that if a man sees an item that belongs to him in someone else's property, he should not enter without permission in order to retrieve it, lest he appear as a sneak-thief. Rather, smash his teeth and openly say to him: "I am taking what is mine."' Rabbi Yehuda defended his opinion by saying that Ben Bag Bag's is the minority opinion of Rabbi Nechemiah.

"Rabbi Yannai attempted a problematic defense of Rabbi Yehudah by saying that 'smash his teeth' means to attack his opponent's claim in court."

The Gemara (28a) asks questions regarding both Rabbi Yehuda and Rabbi Nechemiah in seven different cases, and each rabbi answers the questions. Rambam decides the matter in favor of Rabbi Nechemiah (Hilchot Sanhedrin, Chap. 2, Halachah 12). The Tur also decides that a man may enforce the law for himself even when inaction entails no loss (Choshen Mishpat, Chapter 4), but the Beit Yosef quotes the Mordechai as severely limiting Rabbi Nechemiah's law to only the case in which one recognizes one's article in someone else's property. In this case, one obviously knows what belongs to himself, but all other cases involve points of law and one cannot take the law into one's own hands.

The Slonimer Rav remarks about this week's parsha that it is surprising that these mishpatim, "laws" (featured in Exodus, chapters 21-23), interrupt the Torah's relating of the story of Sinai (chapters 18-20, and chapter 24). Rashi himself comments that these mishpatim too were given on Sinai.

The Slonimer further comments that every day in our morning prayers, we say Psalm 147, which finishes: "The Lord relates His words to Jacob, his laws and mishpatim to Israel. He did not do so for any other nation, and mishpatim, they know them not (bal)." His "words" (dvarav) are the Ten Commandments (dibrot), and His mishpatim are these statutes in our parsha. All are Divine and not dependent on human logic, ethics, sentiments or philosophy; were a human judge to reach the same ultimate decision by a process not based on Torah law, it would not represent Torah Law, of which the Talmud says, "He who judges a true decision has become thereby a partner to the Almighty in the act of Creation (Breishit; Shabbat 10a)."

Rabbeinu B'Chayei (end of "Introduction") adds that the word bal, used in Psalms, is unusual, as "not" is always the word lo. He therefore says that this is a reference to the entire Torah being Divine: the word bal is composed of the letter bet, which opens the Torah (Breishit, "In the beginning"), and the letter lamed, with which the Torah ends ("Israel"). The message is: all of this Torah, from bet to lamed, is Divine, given at Sinai to the people of Israel exclusively.

Apparently, those who conducted the survey wanted settlers like me to come across as wild and out of control vigilantes. Just this very week, there has been an outcry from the Left against a new Member of Knesset from Ichud Leumi (National Union) who, horror of horrors, learned Torah from the late Rabbi Meir Kahane, MK, "and didn't the Knesset outlaw Kahanist philosophy." Of course, this is more leftist fanaticism and exaggeration: the Knesset outlawed the Kach political party, but never went so far as to become a thought-police to outlaw Rabbi Kahane's philosophy. Indeed, Rabbi Kahane was a rabbi, teaching Torah; not even the Knesset (which passed the evil, cruel eviction statutes against Gush Katif) would outlaw these mishpatim and dibrot, laws of truth and chesed (Baba Kama 30a; Rabbi Yehuda said that he who wants to be a man of chesed, "lovingkindness", let him learn these tort laws).

Furthermore, a historical anecdote. During the years Rabbi Kahane was an MK, there was a Minister Without
Those who conducted the survey wanted settlers like me to come across as wild and out of control.
Portfolio (from the National Religious Party) named Yosef ("Yoska") Shapiro. Yoska is the son of Rabbi Shai'ala (Yeshayahu) Shapiro, one of the founders of religious-Zionism in the first half of the 20th century. Rabbi Shapiro was known as the Rebbe Hachalutz; after founding the movement, its educational system and its bank, he left the city and went to farm in Kfar Pinnes, in order to have the mitzvah of farming the Holy Land. The Rebbe died of shock and sadness, shortly after learning of the extent of the Holocaust, including the murder of his brother, the Piachechner Rebbe, the Rabbi of the Warsaw Ghetto, Rabbi Kalman Kalonymous Shapiro.

Yoske Shapiro was worldwide director of Bnei Akiva for twenty years, sat in the Knesset from 1984-1988, with Rabbi Kahane, and said: "Many walk out of the Knesset when Rabbi Kahane rises to talk. But he is a learned rabbi, and has much good to say, speaking words (devarim) of Torah - and he's done much chesed for Soviet Jewry, baalei tshuvah and Israel. I stay and listen."

Yoska himself has spoken much Torah and done much chesed with Bnei Akiva, Oz, Soviet Jewry and Olim. We went on Tehillah's pilot tours, and even now Tehillah continues its work with Olim. But Yoska is not well, and would benefit from prayers for a refuah shleimah ("complete recovery") forYisrael Yosef ben Chayah Sarah.

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